#6918 - Torts B Summary Causation - Torts Law

Causation

1. Burden of Proof

   1. S 52: in determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation

   2. Proof by inference is an acceptable means of discharging this burden Holloway v McFeeters

   3. ‘you need circumstances raising a more probable inference in favour of what is alleged’ Holloway v McFeeters

2. Is D’s breach a necessary condition of the P’s harm (factual causation)?

   1. Whether D’s carelessness, on balance of probabilities, materially contributed to or increase the harm to P

   2. Section 51 (1) (a): A determination that negligence caused a particular harm comprises the following elements (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation)

   3. apply the ‘but for’ test on factual causation

      1. Would the P’s injury have occurred but for the defendant’s breach of the duty of care

         • You must imagine a hypothetical set of circumstances that is the same as the one that has occurred, but where the D’s negligence is absent

         • Examples:

           • Barnett v Chelsea: failure to treat husband, would have died anyway no matter the treatment

      2. Failure to warn

         • Causation has to be established by the subjective test of whether the particular patient or the particular patient’s state of mind was such that if told of the risk they would have refused treatment

         • S 51 (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances

           • Rosenburg v Percival: wasn’t told risks of surgery but would have gone through with it anyway

           • Chappel v Hart: P lost opportunity to undergo surgery at the hand of a better surgeon (with decreased risk)

         • S 56 (1)The P must prove on the balance of probabilities that they were not aware of the risk or information

   4. If the ‘but for’ test suggests the D’s breach is not a cause (eg. there are multiple sufficient causes) are there reasons none-the-less to find it to be a cause?

      1. S 51 (2): If something is not found to be a necessary condition of the harm, consideration should be given as to whether or not and why responsibility should nonetheless be imposed on the defendant

         • Even if the but for test is not satisfied results must be tempered by the application of common sense, as well as value judgments and policy considerations March v Stramare

   5. Increased risk: there a material contribution or an increase in the risk which provides sufficient connection between breach and harm?

      1. When P cannot scientifically prove exact cause of D’s harm but only to multiple alternative exposures that may have contributed to the development of their illness/ disease because no scientific knowledge is available now, etc

      2. Australian position: factual causation is established if the P shows that (Chappel v Hart)

         1. The D breached the duty of care

         2. This breach increases the risk that P would suffer a particular kind of injury and

         3. The P did in fact suffer an injury of that kind

      3. Must be ‘more probably than not’ that the negligence of the D was a cause of the harm Amaca v Ellis (smoking/asbestos)

      4. Increased risk approach to causation can only apply where all the possible causative agents operate in the same way Barker v Corus

      5. Cases:

         • McGhee v National Coal Board: bricks. Evidence to show some increase risk by not providing showers, this was enough to satisfy factual causation even though he was unable to prove conclusively the lack of showers caused his dermatitis

         • Wilsher v Essex: not factual causation because there were multiple causes of the baby turning blind.

         • Fairchild v Glenhaven Funeral Services: Couldn’t identify which employer caused cancer, Found for P even though they didn’t know which P caused it

         • This was an “exceptional” set of circumstances and application was “limited”

         • Barker v Corus: asbestos from three employers, allowed compensation from each proportionally

         • Tabet v Gett: criticised McGhee and Fairchild

3. Should the D’s breach be found to be a legal cause

   1. Could D have reasonably foreseen that kind of loss, or is it too remote - harm to P needs to be of a legally recognised kind.

   2. S 51 (1) A determination that negligence caused particular harm comprises the following elements (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).

   3. S 51 (4): for the purpose of determining the scope of liability, the court is to consider (amongst) other things whether or not and why responsibility for the harm should be imposed on the negligent party

   4. Is there an intervening cause that breaks the chain of causation?

      1. An intervening act must be unforeseeable tortious conduct or independent events which sever the causal link and amount to a sufficient cause

      2. If it is a natural and reasonably consequence of events (i.e. flowing in ordinary course of things) = NOT intervening cause

         • The Oropesa: Captain of Manchester ordered men onto lifeboat which sunk. His actions were the natural consequence of the emergency due to the negligence of the other ship. Captain was not a NAI as it did not ‘disturb the sequence of events’

      3. Human action does not per se sever the connected sequence of acts. Does not break chain if it is foreseeable Chapman

      4. Voluntary Human Acts (Haber v Walker per Smith J):

         • Action is voluntary if it is “free, deliberate and informed” (Bennett), and is not made under substantial pressure caused by D’s negligence (Haber, see Caterson)

         • Not used in its wide meaning (of “not a reflex, or done without understanding its nature”) but instead that the person exercised free choice. (Haber)

         • But D may have DOC not expose P to a risk of injury from deliberate or voluntary conduct or even to guard against that risk (Stramare) otherwise DOC render useless

      5. Coincidence (Haber) “Lightning strike in operating theatre”

         • It is causally independent of the D’s negligence; and

         • The conjunction of this event with the D’s negligence is so unlikely as to be considered/termed a coincidence. brought V to temporal position, encounters ord hazard of life

         • Haber v Walker: mental illness caused by accident and subsequent suicide did not sever causation as it was not a “voluntary” act of the victim and was made under substantial pressure created by the wrongful act

      6. Subsequent negligent acts

         • Will only break the chain of causation where D is grossly negligent.

         • Subsequent negligent conduct may be reasonable foreseeable. (Chapman)

           • However, reasonable foreseeability is not in itself a test of causation. It simply marks the limits beyond which a D will not be held responsible for damage resulting from his wrongful act.

           • Whether a subsequent act constitutes an intervening cause is ‘very much a matter of circumstance and degree’.

         • Medical treatment: (Mahony)

           • Negligence in administration of treatment does NOT break causative chain because original injury carries risk that med treatment might be negligently given

           • Where D’s...